182.0175 Damage to transmission facilities.
(1) Definitions. In this section:
(aa) “Agricultural activity” has the meaning given in s. 101.10 (1) (a).
(ab) “Commission” means the public service commission.
(ac) “Complainant” means a person who files a complaint under sub. (3) (bg) 1. or 2.
(ag) “Damage prevention fund" means the fund established under sub. (1m) (d) 11.
(am) “Emergency" means a condition that poses a clear and immediate danger to life or health, or a significant loss of property.
(b) “Excavation" means any operation in which earth, rock or other material in or on the ground is moved, removed or otherwise displaced by means of any tools, equipment or explosives and includes grading, trenching, digging, ditching, drilling, augering, tunneling, scraping, cable or pipe plowing and driving and means any operation by which a structure or mass of material is wrecked, razed, rended, moved or removed.
(bm) “Excavator" means a person who engages in excavation.
(bo) “Local governmental unit" means a political subdivision of this state, a special purpose district in this state, an instrumentality or corporation of such a political subdivision or special purpose district, a combination or subunit of any of the foregoing or an instrumentality of the state and any of the foregoing.
(bq) “One-call system" means the system established under sub. (1m) (a).
(br) “Panel" means the panel appointed under sub. (1m) (d) 8.
(bu) “Pavement" means asphalt or concrete pavement.
(bw) “Political subdivision” means a city, village, town, or county.
(bx) “Private transmission facilities" means transmission facilities that are owned by a person, other than a governmental unit, and that are located on private property owned or leased by that person and that do not cross a public right-of-way.
(by) “Respondent” means a person or a person's agent who is alleged in a complaint filed under sub. (3) (bg) 1. or 2. to have taken an action that the person or agent knew or should have known was in violation of this section.
(bz) “State agency” has the meaning given in s. 16.004 (12) (a).
(c) “Transmission facilities" includes all pipes, pipelines, wires, cables, ducts, wirelines and associated facilities, whether underground or aboveground, regardless of the nature of their transmittants or of their in-service application. The term includes, but is not restricted to, utility facilities, government-owned facilities, facilities transporting hazardous materials, communications and data facilities, drainage and water facilities and sewer systems. The term does not include culverts.
(d) “Working days" means days other than Saturday, Sunday and legal holidays.
(1m) One-call system.
(a) Statewide system. Owners of transmission facilities, other than private transmission facilities, shall establish or designate a nonprofit organization governed by a board of directors as the operator of a one-call system and shall be members of the system. The one-call system shall be a statewide communication system in which a single operational center receives excavation notices and transmits notice information to affected-member transmission facilities owners. Owners of private transmission facilities may be members.
(bm) Membership fees. A member may be assessed an initial start-up fee equal to the system's costs in adding the member to the one-call system, except that any initial start-up fee may not exceed $100 for a member whose transmission facilities serve less than 5,000 customers. For purposes of assessing the initial start-up fee, affiliated transmission facilities owners shall be considered a single member. Under this paragraph, a transmission facilities owner is affiliated with another transmission facilities owner if the transmission facilities owner, directly, or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, the other transmission facilities owner. Members shall also be assessed a fee per notice of intended excavation activity. Membership in the one-call system ceases if a fee assessed under this paragraph is more than 90 days past due. A transmission facilities owner may be reinstated as a member upon payment of the amount past due.
(c) Liability. Any transmission facilities owner who is required to be a member of the one-call system and has not complied with the membership requirement is liable for all damages to the owner's transmission facilities and for any other damages that occur as a result of a properly noticed excavation to the one-call system.
(d) System functions. The one-call system shall do all of the following:
1. Publicize the availability and use of the one-call system.
2. Provide toll-free communication to the one-call system.
3. Accept notices of intended excavation activity.
4. Accept notices of intended emergency location or emergency excavation activity 24 hours a day.
4m. Disclose to persons providing notice that the one-call system does not include private transmission facilities as required under par. (e) 1.
5. Inform the person providing notice of the names of affected-member transmission facilities owners who will receive the notice information.
6. Promptly transmit notice information to affected-member transmission facilities owners.
7. Retain records of notices for a period of not less than 6 years.
8. Appoint a panel consisting of the following 7 members to carry out the duties specified in sub. (3) (bg) and (br):
a. Two transmission facility owners.
b. Two excavators.
c. One employee of the operational center established under par. (a).
d. One member who represents the interests of a political subdivision.
e. One person employed as an underground line locator.
9. Establish policies, procedures, and forms as necessary to implement the requirements under sub. (3) (bg) and (br).
10. Provide for the production and administration of the educational course under sub. (3) (br) 4.
11. Establish and maintain a damage prevention fund consisting of fees under sub. (3) (br) 4. and (c) 5. and surcharges under sub. (3) (d) 2.
12. Use the damage prevention fund at the one-call system's discretion to pay the cost of producing and administering the educational course under sub. (3) (br) 4. or providing for public outreach and underground utility damage prevention awareness programs.
(e) Information system.
1. The operator of the one-call system shall ensure, through information distributed to the public by phone, Internet, or printed materials, that a person providing notice on intended excavation activity is informed that private transmission facilities are not subject to the one-call system and that the person providing notice is referred to other entities to be contacted by the person for determining the location of private transmission facilities. In providing this information, the operator shall specifically use the term “propane" in describing the type of private transmission facilities that are not subject to the one-call system.
2. The department of safety and professional services may promulgate a rule that requires retailers, as defined in s. 101.16 (1) (d), of propane to inform their customers each year of the obligation of owners of transmission facilities under this section.
(2) Excavator and planner responsibilities.
(a) Planning. Every person who is responsible for the preparation of plans and specifications for nonemergency excavation and every excavator shall do all of the following:
1. Take reasonable action to learn the location of any transmission facilities in and near the area where the excavation is to be conducted.
2. Plan the excavation to avoid to the extent possible interference with transmission facilities in and near the excavation area.
(am) Excavation notice and other duties. An excavator shall do all of the following:
1. Provide advance notice not less than 3 working days before the start of nonemergency excavation to the one-call system.
2. In an emergency, take all reasonable precautions to avoid to the extent possible interference with existing transmission facilities in and near the excavation area and notify as promptly as possible the owners of transmission facilities which may be affected by the emergency excavation.
4. Provide a repeat notice to the one-call system if marks are destroyed or covered by excavation site activities, if the excavation does not start within 10 days of the scheduled start date or if excavation is interrupted for more than 10 days.
5. Provide support for existing transmission facilities in and near the excavation area that may be reasonably necessary or that is specified by the transmission facility owner for the protection of the facilities, unless protection is required of the owner of the transmission facility under s. 66.0831.
6. Before backfilling, inspect all transmission facilities exposed during excavation to ascertain if the transmission facilities have been or may have been struck, damaged, dislocated or disrupted.
6m. Refrain from backfilling an excavation until an inspection is conducted and any necessary repairs have been made by the owner of the transmission facility.
7. Immediately notify the owner of a transmission facility if an inspection reveals that the transmission facility has been or may have been struck, damaged, dislocated, or disrupted and, if flammable, toxic, or corrosive gas or liquid has escaped that may endanger life, cause bodily harm, or result in damage to property, promptly make a report to the 911 emergency telephone number.
8. Backfill an excavation as specified by the owner of the existing transmission facilities or in a manner and with materials that may be reasonably necessary for the protection of, and to provide reliable support during backfilling and following backfilling for, existing transmission facilities in and near the excavation area.
(as) Minimum clearance.
1. An excavator shall maintain an estimated minimum clearance of 18 inches between a marking for an unexposed underground transmission facility that is marked under sub. (2m) and the cutting edge or point of any power-operated excavating or earthmoving equipment, except as is necessary at the beginning of the excavation process to penetrate and remove the surface layer of pavement.
2. When an underground transmission facility becomes exposed or if a transmission facility is already exposed, the excavator may reduce the clearance to 2 times the known limit of control of the cutting edge or point of the equipment or 12 inches, whichever is greater.
(bm) Notice contents. An excavation notice shall include all of the following information:
1. The name of the person providing notice.
2. The name, address and telephone number of the excavator.
3. The specific location and description of the excavation area, including the county, place, street address, nearest intersecting road, distance and direction from the nearest intersection and marking instructions.
4. A description of the intended excavation activity.
5. The intended starting date of the excavation.
(c) Exemption for cemeteries. This subsection does not apply to any excavation in connection with the burial, as defined in s. 157.061 (1), of human remains in a cemetery, as defined in s. 157.061 (1p).
(2m) Transmission facilities owner requirements.
(a) Responsibilities. A transmission facilities owner shall do all of the following:
1. Respond to a planning notice within 10 days after receipt of the notice by conducting field markings, providing records and taking other appropriate responses.
2. Respond to an excavation notice within 3 working days by marking the location of transmission facilities and, if applicable, laterals as provided under par. (b) in the area described in the excavation notice.
3. Provide emergency locater service within 24 hours after receiving a request for that service.
(b) Facilities marking. A person owning transmission facilities, upon receipt of an excavation notice, shall mark in a reasonable manner the locations of transmission facilities at the area described in the notice to enable the excavator to locate the transmission facilities without endangering the security of the facilities or the public. For purposes of this paragraph, transmission facilities are marked in a reasonable manner if the owner of the transmission facilities locates and marks the transmission facilities to a level of accuracy and precision consistent with national standards. Except as provided in par. (bm), if the person is a local governmental unit and if the excavation notice relates to sewer or water facilities owned by the local governmental unit, the local governmental unit shall also mark the locations within the public right-of-way of all laterals connected to the sewer or water facilities at the area described in the notice. The marking of facilities shall be completed within 3 working days after receipt of the notice, or if notice is given more than 10 days before excavation is scheduled to begin, marking shall be completed at least 3 working days before excavation is scheduled to begin. If the approximate location of a transmission facility is marked with paint, flags, stakes or other physical means, the following color coding of lines, cables or conduits shall comply with the uniform color code adopted by the American National Standards Institute:
1. Electric power: red.
2. Gas, oil, steam, petroleum or gaseous materials: yellow.
3. Communications, cable television or alarm or signal systems: orange.
4. Water, irrigation or slurry systems: blue.
5. Sewer or drain systems: green.
6. Temporary survey markings: pink.
7. Proposed excavation: white.
(bm) Local governmental units. A local governmental unit is considered to have satisfied the requirement under par. (b) to mark the locations within the public right-of-way of all laterals connected to sewer or water facilities if the local governmental unit makes available to an excavator, for inspection and making copies, information on the location of such laterals as shown on maps, drawings, diagrams, or other records, that are readily available. If a local governmental unit has no such readily available information regarding such laterals and the local governmental unit provides the excavator with a written notice that the local governmental unit has no such readily available information, the local governmental unit is considered to have satisfied the requirement under par. (b) to mark the locations within the public right-of-way of all laterals connected to the sewer or water facilities.
(br) Private transmission facilities. Paragraphs (a) to (bm) do not apply to owners of private transmission facilities.
(c) Facilities inspection and repair. Every person owning transmission facilities who receives a notice of possible damage shall inspect the facilities for damage within 6 hours after receipt of the notice if there is risk of personal injury or loss of life or within 24 hours after receipt of the notice if there is not a risk of personal injury or loss of life and shall repair any damage found as soon as practicable. Unless the owner of any transmission facility is notified or has knowledge of damage to transmission facilities by an excavator, the owner is not responsible for or required to make an inspection of its transmission facilities, nor shall the owner, in the absence of notification or knowledge, be responsible for supervising in any manner the excavation.
(2r) Facilities installed after December 31, 2006. Any person who, after December 31, 2006, installs a nonconductive water or sewer lateral shall also install a locating wire or other equally effective means for marking the location of the lateral. The requirement shall not apply to minor repairs to, or partial replacements of, laterals installed before January 1, 2007.
(3) Enforcement for natural gas and other hazardous materials.
(bc) Applicability.
1. This subsection applies to violations involving transmission facilities that transport natural gas or other hazardous materials.
2. Except as provided in subd. 3., this subsection does not apply to violations by any of the following:
a. A residential property owner or tenant whose violation of this section results from an excavation on property owned or leased by the residential property owner or tenant.
b. A person whose violation of this section results from an excavation performed while the person is engaged in an agricultural activity.
3. Subdivision 2. does not apply to an excavation performed by or on behalf of a person engaged in the business of performing excavations for the public.
(bg) Complaints.
1. Except as provided in subd. 4., any of the following may file a written complaint with the panel that a person other than a state agency has taken an action that the person knew or should have known was in violation of this section:
a. The one-call system.
b. The department of transportation or a political subdivision, if property under the jurisdiction of the department or political subdivision is affected by an alleged violation of this section.
c. A transmission facility owner, excavator, or underground line locator whose property or activities are affected by an alleged violation of this section.
2. Except as provided in subd. 4., a person specified in subd. 1. a. to c. may file a written complaint with the commission that a state agency has taken an action that the state agency knew or should have known was in violation of this section. If the complaint also involves a respondent that is not a state agency, the commission may consider and determine the complaint against each respondent separately and at such times as the commission prescribes.
3. A written complaint under subd. 1. or 2. shall include all of the following:
a. A short plain statement of the complaint that identifies the transaction or occurrence or series of transactions or occurrences for which the complaint arises and that shows that the person or state agency has taken an action that the person or state agency knew or should have known was in violation of this section.
b. A statement of the provisions of statutes, rules, or commission orders that the person's or state agency's action allegedly violated.
c. Copies of all records and papers on which the complaint is founded.
4. No person may file a complaint under subd. 1. or 2. more than 120 days after the person discovers an alleged violation of this section, except that the panel or commission may for good cause shown allow filing no later than one year after the discovery of the alleged violation.
5. No complaint filed under subd. 1. or 2. may be dismissed solely because of the absence of direct damage to the complainant.
(br) Panel duties.
1. Upon receipt of a complaint filed under par. (bg) 1., the panel shall provide the respondent, by certified mail, a statement of the complaint and a notice requiring the respondent to file a response with the panel within 20 days after the date of service of the notice. The notice shall also advise the respondent of the amount of the fee required for completion of the educational course under subd. 4. Upon request of the respondent, the panel may extend the period for filing the response. The panel may consolidate complaints where appropriate. In the response, the respondent shall admit or deny the violation or aiding in a violation that is alleged in the complaint or advise the panel that, based on the respondent's satisfaction of the complaint, the complainant has agreed to dismiss the complaint.
2. Within the period specified in subd. 3., the panel shall determine by majority vote whether there is probable cause to believe that the respondent has taken an action that the respondent knew or should have known was in violation of this section or whether to dismiss the complaint. The panel shall dismiss a complaint for lack of probable cause or at the request of the complainant. Except as provided in subd. 4., if the panel determines there is probable cause to believe that a respondent has taken an action that the respondent knew or should have known was in violation of this section, the panel shall refer the complaint to the commission and include the complaint and the response of the respondent.
3. The panel shall make a determination regarding probable cause under subd. 2. within one of the following periods:
a. If a respondent files a response within the period specified or extended under subd. 1., within 20 days after the respondent files the response.
b. If a respondent fails to file a response within the period specified in subd. 1. and the panel has not extended the period under subd. 1., within 40 days after the panel's service of the notice under subd. 1.
c. If the panel has extended the period under subd. 1. and the respondent fails to file a response within the extended period, within 20 days after expiration of the extended period.
4. If the panel determines there is probable cause to believe that a respondent has taken an action that the respondent knew or should have known was in violation of this section, the panel may allow the respondent to attend an educational course in lieu of providing notice of probable violation to the commission under subd. 2. The one-call system shall require a respondent who agrees to attend the educational course to pay a fee before completion of the course for recovering a portion of the cost of producing the educational course and the direct cost of administering the educational course for the respondent. The one-call system shall deposit any fees collected in the damage prevention fund.
(c) Commission duties.
1. Upon the filing of a complaint under par. (bg) 2. or receipt of a referral under par. (br) 2., the commission may, with or without notice, investigate the complaint as it considers necessary to determine if sufficient cause exists to warrant a hearing on the complaint. If the commission determines that sufficient cause exists to warrant a hearing on the complaint, the commission shall set the matter for a public hearing upon 10 days' notice and treat the complaint as a contested case. If the commission determines that sufficient cause does not exist to warrant a hearing on the complaint, and within 30 days of that determination the complainant or respondent disputes that determination, the commission shall treat the complaint as a contested case.
2. At any time before the commission issues an order under subd. 4., the commission and the respondent may agree to dismiss the complaint by joint execution of a consent agreement. A consent agreement shall become effective when the commission issues an order approving the consent agreement.
3. A consent agreement under subd. 2. may assess against the respondent a forfeiture under par. (d) 1., require the respondent to attend the educational course under par. (br) 4., or do both. Each consent agreement under subd. 2. shall include all of the following:
a. An admission by the respondent of all jurisdictional facts.
b. An express waiver of any further procedural steps and of the right to seek judicial review or otherwise challenge or contest the validity of the commission's order approving the consent agreement.
c. A statement of the actions required of the respondent and the time by which the actions shall be completed.
4. If a complaint is treated as a contested case under subd. 1. and not dismissed under a consent agreement under subd. 2., the commission shall determine whether probable cause exists to believe the respondent has taken an action that the respondent knew or should have known was in violation of this section. If the commission determines that the respondent has taken an action that the respondent knew or should have known was in violation of this section, the commission may issue an order that assesses a forfeiture under par. (d) 1., requires the respondent to attend the educational course under par. (br) 4., or does both. The commission may not issue an order under this subdivision without a hearing.
5. If a consent agreement under subd. 2. or order under subd. 4. requires a respondent to attend the educational course under par. (br) 4., the consent agreement or order shall also require the respondent to pay the one-call system a fee determined by the one-call system for the educational course, which the one-call system shall deposit in the damage prevention fund.
(d) Forfeitures; surcharges.
1. In a consent agreement under par. (c) 2. or order issued under par. (c) 4., the commission may directly assess a forfeiture of no more than $25,000 for each violation of this section against a person who knew or should have known that the person's action was in violation of this section. Each day of continued violation constitutes a separate violation. No person may be required by the commission to forfeit an amount exceeding $500,000 for a single persisting violation. The commission shall remit the forfeitures to the secretary of administration for deposit in the school fund. No other forfeiture may be imposed for violating this section.
2. For each forfeiture assessed under subd. 1., the commission shall require the person assessed to pay a surcharge equal to 10 percent of the amount of the forfeiture to the one-call system, which the one-call system shall deposit in the damage prevention fund. If the amount of a forfeiture is reduced on appeal, the amount of the surcharge shall be proportionately reduced.
(e) Lawful and reasonable orders and determinations. After the effective date of any order or determination of the commission under this section, the order or determination shall be on its face lawful and reasonable unless a court determines otherwise under s. 227.57.
(f) Judicial review. Judicial review of an order of the commission under par. (c) 4. may be had by any person aggrieved in the manner prescribed in ch. 227.
(g) Rules. The commission may promulgate rules implementing the requirements under pars. (c) to (e).
(3g) Other forfeitures.
(a)
1. This subsection applies to violations involving transmission facilities that do not transport natural gas or other hazardous materials.
2. Except as provided in subd. 3., this subsection does not apply to violations by any of the following:
a. A residential property owner or tenant whose violation of this section results from an excavation on property owned or leased by the residential property owner or tenant.
b. A person whose violation of this section results from an excavation performed while the person is engaged in an agricultural activity.
3. Subdivision 2. does not apply to an excavation performed by or on behalf of a person engaged in the business of performing excavations for the public.
(b) Any person who willfully and knowingly violates this section may be required to forfeit $2,000 for each offense. Each day of continued violation constitutes a separate offense.
(3r) Misdemeanor. Whoever intentionally removes, moves, or obliterates a transmission facilities marking placed by the transmission facilities owner may be fined not more than $500 or imprisoned for not more than 30 days or both. This subsection does not apply to an excavator who removes or obliterates markings during an excavation.
(4) Right of action. Except as provided in sub. (3) (d) 1. and (e), this section shall not affect any right of action or penalty which this state or any person may have.
(5) Right to injunction. If any person engages in or is likely to engage in excavation inconsistent with this section and which results or is likely to result in damage to transmission facilities, the person who owns or operates the facilities may seek injunctive relief in the circuit court for the county in which the transmission facilities are located. If the transmission facilities are owned or operated by a public utility as defined in s. 196.01 (5), including a telecommunications carrier, as defined in s. 196.01 (8m), and the public utility does not seek injunctive relief, the attorney general, upon request of the commission, shall seek injunctive relief in the circuit court for the county in which the transmission facilities are located.
History: 1973 c. 277; 1977 c. 350; 1977 c. 449 s. 497; 1983 a. 189; 1985 a. 297 s. 76; 1993 a. 482, 496; 1995 a. 135; 1999 a. 150 s. 672; 2005 a. 425; 2007 a. 96 s. 110; 2007 a. 203; 2011 a. 32; 2015 a. 237, 327; 2017 a. 136; s. 35.17 correction in (3) (bg) 2., 3. (intro.).
Sub. (2) (am) 6. and 6m. do not require an excavator to inspect the excavation; rather, they require inspection of transmission facilities exposed during the excavation. In this case, where a sewer lateral was broken during excavation, there was no evidence to indicate the presence of any markings indicating that a sewer lateral was in the way of the excavation and no facts from which it could be inferred that the sewer lateral was exposed during excavation. The excavator's duty to inspect the sewer lateral for damage and refrain from backfilling until repairs could be made was not triggered. Melchert v. Pro Electric Contractors, 2017 WI 30, 374 Wis. 2d 439, 892 N.W.2d 710, 13-2882.